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Ohio Adds New Exceptions to the Definition of “Public Records” Relating to Dash-Cam and Body-Cam Recordings

By: Ami Imbrogno

In this day and age, it seems that not a week goes by without turning on the evening news, logging onto Facebook, or firing up a YouTube application and seeing videos depicting police encounters with civilians.  Many of these videos are recorded on private cell phones and released by private citizens; however, some of these videos have been obtained by individuals, news sources, or other entities via public record request, the laws surrounding which are changing.

On January 7, 2019 Governor Kasich signed into law HB 425, “Declare police body camera recordings not to be public records,” to be effective April 8, 2019.  The law does not declare that all dash-cam and body-cam recordings are not public record, but instead declares that “restricted portions” of the recordings are not included in the definition of public record.  The law defines “restricted portions as the following:

  • The image or identity of a child or information that could lead to the identification of a child who is a primary subject of the recording when the law enforcement agency knows or has reason to know the person is a child based on the law enforcement agency’s records or the content of the recording;
  • The death of a person or a deceased person’s body, unless the death was caused by a peace officer or the consent of the decedent’s executor or administrator has been obtained;
  • The death of a peace officer, firefighter, paramedic, or other first responder, occurring while the decedent was engaged in the performance of official duties, unless consent of the decedent’s executor or administrator has been obtained;
  • Grievous bodily harm, unless the injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence against a person that results in serious physical harm to the person, unless the act and injury was effected by a peace officer or the consent of the injured person or the injured person’s guardian has been obtained;
  • Grievous bodily harm to a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • An act of severe violence resulting in serious physical harm against a peace officer, firefighter, paramedic, or other first responder, occurring while the injured person was engaged in the performance of official duties, unless the consent of the injured person or the injured person’s guardian has been obtained;
  • A person’s nude body, unless the person’s consent has been obtained;
  • Protected health information, the identity of a person in a health care facility who is not the subject of a law enforcement encounter, or any other information in a health care facility that could identify a person who is not the subject of a law enforcement encounter;
  • Information that could identify the alleged victim of a sex offense, menacing by stalking, or domestic violence;
  • Information, that does not constitute a confidential law enforcement investigatory record, that could identify a person who provides sensitive or confidential information to a law enforcement agency when the disclosure of the person’s identity or the information provided could reasonably be expected to threaten or endanger the safety or property of the person or another person;
  • Personal information of a person who is not arrested, cited, charged, or issued a written warning by a peace officer;
  • Proprietary police contingency plans or tactics that are intended to prevent crime and maintain public order and safety;
  • A personal conversation unrelated to work between peace officers or between a peace officer and an employee of a law enforcement agency;
  • A conversation between a peace officer and a member of the public that does not concern law enforcement activities;
  • The interior of a residence, unless the interior of a residence is the location of an adversarial encounter with, or a use of force by, a peace officer; and,
  • Any portion of the interior of a private business that is not open to the public, unless an adversarial encounter with, or a use of force by, a peace officer occurs in that location.

Those exceptions that allow disclosure upon receipt of consent of the subject may only be released with the consent if one of the following apply:

  • The recording will not be used in connection with probable or pending criminal proceedings; or,
  • The recording was used in connection with a criminal proceeding that has been dismissed or for which a judgment has been issued, and will not be used again in connection with any probable or pending criminal proceedings.

 The law also provides that if a public office denies a request to release a restricted portion of a recording, the requestor may file a complaint for mandamus with the court of claims, which will allow the release if it determines by clear and convincing evidence that public interest substantially outweighs privacy interests and other interests asserted to deny release.

Many of these components of the definition fall within other exceptions to public records and government entities are probably already withholding or redacting recordings that contain those components, such as confidential law enforcement investigatory records or information pertaining to the recreational activities of a person under the age of eighteen. However, government employees who handle the release and redaction of records should familiarize themselves with the new definition and continue to follow all other laws relating to public records.  For example, records should be redacted where possible and only fully withheld if redaction would create a substantial burden or would remove all value from the recording.

Government entities should also review their records retention schedules to make certain it addresses this type of footage.  They should remember that even if these materials are no longer public record, they could be relevant to future litigation.

Finally, the new law does not make it clear what procedures are required to be followed in obtaining “consent” to release records; it does not prescribe what lengths the government entity needs to go to in order to obtain consent or in which form the consent must be.  Those who obtain consent to release records should in the minimum ensure that consent is given knowingly and in writing.


For more information on this matter or any other civil rights and government liability questions, contact Ami at aimbrogno@mrrlaw.com or 440.505.2713.

Ami is an Attorney in MRR’s Cleveland office and focuses her practice on civil rights and government liability defense, employment and labor defense, public sector law, and education law.

 

Internal Investigation Notes May Now Be Public Record

By Tami Hannon

Most public agencies understand that their records are public. But what about those records created by private individuals hired by a public agency?  Specifically, what about notes taken by a private individual while conducting an investigation on behalf of the agency?  A recent decision issued by the Ohio Court of Claims indicates that yes, those records are also public record.

In Hurt v. Liberty Township, the Board of Township Trustees hired an outside private attorney to investigate possible wrongdoing by the fire chief. The attorney conducted numerous interviews during which he took notes. He later used those notes to prepare a report to the trustees, though the notes themselves were never given to the township. The investigation revealed potential wrongdoing and the attorney was instructed to prepare the statutorily required charges against the fire chief. Prior to the removal hearing, the fire chief’s attorney subpoenaed the investigator’s notes. A copy of those notes were provided at the hearing for his review.

Later, two individuals made a public records request for several items, including the attorney’s notes. The township and the attorney refused to provide the notes on the basis that they were not township records as they had been created and maintained by the private attorney. The requestors used a new provision in R.C. §2743.75 to file a claim with the Ohio Court of Claims alleging an improper denial of public records. That court recently ruled that the notes are, in fact, public records subject to disclosure.

The court relied on several factors in reaching that conclusion. First, the court found that the private attorney had been retained to perform a function statutorily delegated to the township, specifically investigating potential wrongdoing by the fire chief. The notes documented the performance of that function. Second, the notes were used to prepare the report (a public record) but did not appear to have been substantially duplicated in the report. As information was contained in the notes that was not contained in the report, the court found that the notes were a separate record and not a duplicate of the report or a transient record used to assist in preparing the report. Finally, the court found that the fact that the township did not have possession of the records was immaterial as the attorney had carried out an official function, the township had monitored his performance and the investigation and the township could have access to those records.

Historically, personal notes have always been a grey area. Some courts have found that the notes are not public record if they are merely kept to help the individual recall something and are not shared with others. Notes taken that are later incorporated into a report and discarded have also historically not been public record. The issue was less clear when notes were shared with others and relied upon by them, or when the notes had some value apart from the report itself, such as when the entirety of the notes were not incorporated into the report.

In Hurt, the court held that the notes from the interviews during the internal investigation were not merely kept for personal convenience or discarded once the report had been written. Rather, the court found that the notes had a separate value given that they were retained and provided to the other attorney during the pre-disciplinary process which indicated that they contained information not otherwise incorporated into the written report. As such, the court held the notes left the realm of personal records and became public records.

In Hurt, a specific statute required the township to conduct an investigation and authorized the hiring of a private individual to conduct that investigation. The obligations in that statute built the foundation for several of the court’s findings. While the issue before the court was limited to that specific statute, it opens the door for notes made during any statutory investigation to be public records. The issue is less clear in cases of general workplace misconduct or harassment, as best practices and risk management require an investigation but the statutes do not. The lack of a statutory obligation may offer some protection to those investigations. Until the law becomes more developed, investigatory notes and interviews may be public record, even when the investigation is performed by an outside third party.

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